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would be required to be drawn from each election precinct to make up the number of 350, in the ratio the vote cast in any election precinct at the last general election bears to the whole vote cast in the county, and to order the judges of election to return that number. If the election precincts be changed, then the county clerk must estimate the number of jurors to be drawn in the newly established precinct as best he could, by taking into consideration the territory embraced and the number of votes cast in the precinct or precinct of which the new precinct forms a part, and fill in the blank oath on the pollbooks the number of jurors so ordered for each precinct. It further commanded that at the close of the election, and when the ballots were counted, the judges of election should examine the list of names on the pollbooks, and under their oaths select the number of persons designated by the clerk, with the qualifications aforesaid, as jurors, and make a list of the same, sign it under their hands, and return it to the clerk. When received by the clerk it was made his duty to write out all the names returned on separate slips of paper, and place them in the box with a lock and key, and keep the same locked, and from the names so placed in the box the grand and petit jurors should be drawn., "The names first drawn shall constitute the grand jury and the latter the petit jury for the term, to which they are drawn. If from any cause the judges of election shall fail to make returns of jurors from their precincts, it shall be the duty of the county commissioners to take the poll books returned from that precinct and to select the number of persons required to serve as jurors from that precinct. * Provided, however, that no indictment shall be set aside for the reason that such indictment was found by a grand jury drawn from a list containing more or less than three hundred and fifty names." The general statute respecting grand jurors and indictments prescribes the grounds of challenge to grand jurors. It declares inter alia that neither the territory nor the person indicted could take advantage of any objection to the panel or to an individual grand juror unless it be by challenge before the grand jury is sworn, except that after the grand jury is sworn, before. indictment found, the court, in its discretion, upon good cause, may receive and allow the challenge.

*

It would seem that because of the peculiar conditions which arose in the selection of grand jurors in the territory, and to prevent what, in the opinion of the Legislature, constituted some abuses in the organization of the grand jury to bring about indictments, the Legislature in 1895 (Sess. Laws 1895, p. 193, c. 41) amended the existing statute as follows:

"No grand juror who has not made known his excuse to the office[r] summoning him shall be excused unless it be made clearly to appear that he is wholly unable to attend and perform the duties of a grand juror. The officer returning a juror not found or unable to serve, must by affidavit set out in full the facts relating to each juror so returned, must swear to and file the same with the clerk of the court where it shall be preserved. False swearing in such affidavits shall constitute perjury. If a sufficient number of grand jurors fail to appear, or be unable to serve, there shall be drawn from the jury box the names of other persons in the same manner, and they

shall be summoned and the panel thus filled. The persons selected and empaneled for a federal grand jury may be empaneled and sworn as a territorial grand jury."

This amendatory act further declared (page 196) inter alia that:

"The indictment must be set aside by the court in which the defendant is arraigned, and upon his motion in either of the following cases: First, when it is not found, endorsed, presented, or filed, as prescribed by the statutes of the territory, or when the grand jury is not drawn or empaneled as provided by law, and that fact is known to the defendant at or before the time the jury is sworn to try the cause. * When a grand juror has been fully examined as to his qualifications to sit, and has answered under oath that he is qualified, and has been received by the court and permitted to act, his incompetency shall not thereafter be shown as a ground of objection to any indictment returned by that grand jury."

* *

Section 5111 of the former statute was amended as follows:

"If the motion to set aside the indictment be not made, the defendant is precluded from afterwards taking the objections mentioned in the last section except the one that the grand jury was not drawn and empaneled as provided by law, and that may be shown as ground for new trial, when a showing is made that those facts were not known to the defendant or his counsel until after the jury was sworn for the trial of the cause." Laws 1895, p. 197, c. 41.

Upon the return of the indictment in question into court the plaintiff in error challenged it by motion, duly sworn to. As the facts set up and sworn to in said motion were not controverted, they stand as admitted. Neal v. Delaware, 103 U. S. 394, 395, 26 L. Ed. 567. Among other things, it showed that the clerk, in sending out to the judges of election the number of jurors to be drawn from the ballot boxes, failed to accompany it with the form of oath to be taken by said judges, and that such oath was not in fact taken or returned by them as by statute provided. The motion further showed that the clerk of the court, prior to the general election at which the grand jurors in question were drawn, made only a partial apportionment of the jurors in the voting precincts, and did not apportion them among all the precincts, as by statute directed; that he instructed the judges of election in the Second Ward of the city of Perry to return only 21 jurors, when there were 250 votes cast in said ward, making 1 juror to every 1119/21 population, which instructions were complied with; that at another precinct said clerk instructed the judges to return 21 names as jurors, which was short of the number to be apportioned; that prior to the general election the town of Billings was organized in said county, and the inhabitants thereof were qualified to vote and to take part in said election, and did so participate, casting 136 votes; that it constituted a voting precinct, and was a part of what was formerly known as Bunch Creek township, a voting precinct in the county; that by note or memorandum entered on the pollbooks said county clerk directed the judges of election not to return any jurors from said town, which directions were followed, and no jurors were otherwise selected from said town or voting precinct and placed in the jury box.

If the county clerk could thus disregard the imperative requirements of the statute in these important particulars, he could thwart

the will of the Legislature in writing them into the statute. The evident purpose of the Legislature was, first, to put the judges of election upon their conscience, under the pains and penalties of perjury, in pursuing the course prescribed by the statute in selecting and placing the names of jurors in the jury box. In the second place, it was to prevent the packing of juries by drawing them from particular communities, by requiring the list to be made up, proportioned to the number of voters in each precinct in the county. If the clerk of the court could direct the judges of election to omit one precinct or another from which the jury list should be drawn, he could, by the same assumption, designate what particular precincts from which the selection should be made. This the law governing his action interdicted.

The motion to set aside the indictment disclosed the further fact that on the suggestion of the attorney for the government the court excused two of the grand jurors called-one for the reason that, in the court's opinion, he had not lived sufficiently long in the county, when the only evidence on the examination showed that the juror was qualified in that respect. Another juror, on the suggestion of the prosecuting attorney, was excused by the court on the ground that, being in the employ of another person as a driver of a wagon and team, he sometimes, under direction of his employer, hauled beer for delivery to customers of his employer. The disqualification of grand jurors, imposed by the statute, pertaining to the subject-matter of liquor, is as to "any person licensed to sell liquor, or a habitual drunkard." As this juror was not shown to be either, his exclusion was illegal. The right of peremptory challenge either to the array or poll does not exist at common law. It must therefore follow that such challenge obtains only for the causes specified in the statute, to be exercised by the persons therein named. Thompson & Merriam on Juries, 519; Jones v. State, 2 Blackf. (Ind.) 475; State v. Davis, 22 Minn. 423; Keitler v. State, 4 G. Greene, 291. The statute of Oklahoma Territory does not confer such right on the prosecutor for the government. And while it may be conceded, for the purposes of this case, that at common law a large measure of discretion may be and ought to be intrusted to the presiding judge, in exercising a supervisory jurisdiction over the constitution of juries, to keep the array and panel as free as possible from improper characters, such as seem to him would impair the morale of the body, and that this discretion ought not to be interfered with by the reviewing court where it does not appear that any essential injustice to the accused resulted therefrom, yet if it be that the local Legislature has interdicted or limited this right, for reasons satisfactory to itself, the logical presumption is conclusive that it is hurtful to the defendant when the statute is not obeyed. The amendatory statute of 1895, as above quoted, expressly declares that "the indictment must be set aside by the court in which the defendant is arraigned upon his motion * * when the grand jury was not drawn and empaneled as provided by law," and that fact is known to the defendant at or before the time the jury is sworn to try the cause. As evidence of the positive purpose

of the Legislature to make this statute effective, beyond any discretion of the court, the amended statute of 1895 declared that, if the motion to set aside the indictment be not made, the defendant is precluded from afterwards taking the objection above mentioned, "'except the one that the grand jury was not drawn and empaneled as provided by law, and that may be shown as ground for new trial when a showing is made that those facts were not known to the defendant or his counsel until after the jury was sworn for the trial of the cause." The grand jury was not drawn as the statute commands. It also commanded that "the names first drawn shall constitute the grand jury." When, therefore, the court, contrary to the policy of the statute, peremptorily excused and discharged from the array two qualified jurors, in the order in which they were called, and substituted others below them on the list, "the names first drawn" did not enter into the constitution of the grand jury, and therefore, "the grand jury is [was] not drawn and empaneled as provided by law." As the statute, in unmistakable terms, declares that for such causes the indictment must be set aside by the court in which the defendant is arraigned, upon his motion, and such motion was timely made, it does not admit of debate that the court erred in denying the motion.

Whatever may be the personal views of this court of such extreme legislative acts, whereby the interest of public justice in the particular case may be thwarted in the escape of an offender, and however unseemly it may appear to the court that the legislative branch of the territory should thus express such lack of confidence in the integrity and judicial discretion of the judges of its courts, the policy of such enactments rests with the legislative department, which the judicial department can neither control nor disregard.

It is true, as suggested by the attorney for the government, that the Supreme Court of the territory reached a different conclusion in construing the statutes in question; but, as the rulings of that court are by statute made reviewable by this court, its construction placed upon the local statutes of the territory is not conclusive.

Other objections are urged against the proceedings in the court below, which we deem it neither necessary nor expedient to discuss. It results that the action of the Supreme Court of Oklahoma Territory in affirming the judgment of the district court, and the action of the district court in denying the motion to set aside the judgment, are reversed, and the case is remanded, with directions to the district court to set aside the judgment of conviction and to set aside the indictment, and for further proceedings in conformity with this opinion.

LOEW SUPPLY & MFG. CO. v. FRED MILLER BREWING CO.

(Circuit Court of Appeals, Seventh Circuit. April 11, 1905.)

No. 1,108.

1. PATENTS-CONSTRUCTION OF CLAIMS-NEW COMBINATION OF OLD ELEMENTS. One who selects and combines elements from the inventions of others into a new structure adapted to accomplish the old result is entitled to a patent only for his own particular form of adaptation.

[Ed. Note.-For cases in point, see vol. 38, Cent. Dig. Patents, § 27.]

2. SAME-INFRINGEMENT-MACHINE FOR WASHING BOTTLES.

The Cobb patent, No. 690,563, for a bottle-washing machine, covers a new combination of devices known in the prior art, and is limited to the specific adaptation of such parts shown. As so construed, it is not infringed by the machine of the Volz patent, No. 736,037.

Appeal from the Circuit Court of the United States for the Eastern District of Wisconsin.

Appellant's bill on account of the alleged infringement of letters patent No. 690,563, January 7, 1902, to Cobb, assignor, for improvements in bottlewashing machines, was dismissed for want of equity.

The general nature of the Cobb machine can be read from the accompanying drawing:

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The claims alleged to have been infringed are these:

"(1) In bottle-washing machines, a solution-tank, an endless flexible carrier, and a series of rolling supports over which said carrier travels and is reversed in relation to the tank, said carrier having openings through which the bottles are inserted from the outside, and receptacles inside the carrier about said openings to receive the bottles bodily, substantially as described."

"(4) A bottle-carrier for a bottle-washing machine, comprising a pair of endless chains, straight cross-pieces at intervals connecting said chains, and constructed each with holes to accommodate a row of bottles, and bottlereceiving baskets on the inside of said cross-pieces about said holes, of a size to receive substantially the entire bottle, substantially as described." "(9) In bottle-washing machines, an endless carrier having a series of cross-plates with holes of a size to pass the bottles through to the inside of the carrier, and holders for the bottles on the inside of said cross-plates about said holes, of a size to receive the entire bottle within the carrier, said holders having their inner free ends constructed to expose the mouth of the bottle to the solution, and to hold the bottle from dropping out into the tank when inverted, substantially as described.

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